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Report No. 35

Topic Number 57(c)

Procedure for exercise of mercy-whether any provisions needed

1080. Procedure for exercise of mercy-whether any provisions needed.-

We may now consider whether any provisions are needed as regards the procedure for the exercise of the prerogative of mercy.

1081. Consultation with the Supreme Courts or High Court.-

In the replies received1 as to the procedure to be followed by the President and the Governor in the exercise of the prerogative of mercy, one of the suggestions made is that the court should be consulted as to whether the case is a fit one for the exercise of this prerogative. In this connection, it may be of interest to refer to the statutory provisions on the subject in India and in other countries.

1. See paras. 1051-1069, supra.

1082. So far as India is concerned, we may refer to the provisions of section 401(1) and (2) of the Code of Criminal Procedure1, whereunder, when an application is made for the suspension or remission2 of a sentence by the appropriate Government, that Government may require the presiding Judge of the court before or by which a conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reason for such opinions and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

1. The Code of Criminal Procedure, 1898, section 401.

2. As to the meaning of "remission" under section 401, see D.I.G. Police v. Rajaram, AIR 1960 AP 259 (262), paras. 17-18.

1083. In England, there is a provision in section 19(1) of the Criminal Appeal Act1, (as amended by the Administration of Justice Act, 19602), which is quoted below:-

"19. Nothing in this Act shall affect the prerogative of mercy, but the Secretary of State on an application made to him by a person convicted on indictment or without any such application, may, if he thinks fit at any time, either-

(a) refer the whole case to the Court of Criminal Appeal and the case shall then be treated for all purposes as appeal to that court by the person convicted; or

(b) if he desires the assistance of the Court of Criminal Appeal on any point arising in the case, refer that point to the Court of Criminal Appeal for their opinion thereon, and the court shall consider the point so referred and furnish the Secretary of State with their opinion thereon accordingly.".

The use to which section 19(1) of the Criminal Appeal Act has been put can be gathered from a note, which we quote3

"There have been a number of instances of reference of the whole case, including a murder case [R. v. Gray, (1947) 12 Cr App Rep 244; Rs. v. Field, (1921) 15 Cr App Rep 129]. Cases so referred are heard exactly as if they were appeals [R. v. Dickman, (1910) 5 Cr App Rep 135]. The object of the reference is to assist the Home Secretary in respect of the exercise of Royal Prerogative and any evidence which might achieve that object can be considered. [R. v. McGrath, (1949) 2 All ER 495]".

1. The Criminal Appeal Act, 1907, (Edw. 7, C. 23), as amended in 1960.

2. The Administration of Justice Act, 1960 (8 & 9 Eliz. 2, c, 65).

3. Note in (1959), 109 LJ 563.

1084. It is understood that in one case heard on such a reference, Lord Goddard admitted further evidence on the merits, resulting in an acquittal at law, thus putting the matter beyond the necessity of further consideration by the Home Secretary1; Lord Hewart had a similar situation in the case of R. v. Wm. Knighton in 1927 or 1928 (unreported), in which (evidence of the condemned man's young sister was led which, if believed, must have resulted in an acquittal on the merits. The evidence was not believed2.

1. J.A. Wharton in a letter to the Editor, (1959), 109 14 724.

2. J.A. Wharton, in a letter to the Editor, (1959), 109 LJ 724.

1085. Somewhat similar provisions would be found in section 596 of the Criminal Code of Canada, and section 406 of the Crimes Act, New Zealand.

We do not, however, think that any statutory provision is needed requiring the President or the Governor to consult the Supreme Court or the High Court. Such a provision would not, strictly speaking, be in harmony with the essential nature of the prerogative1.

1. As to essential nature of the prerogative, see paras. 1021-1024, supra.

1086. Advisory Board.-

We now consider the question whether there should be a Board of Advisers to advise the President or the Governor in the exercise of these powers. Various suggestions have been made as to the composition of such a Board1. We are not, however, inclined to recommend any provision requiring the constitution of such Board and consultation with it. Consultation with the Judges is a matter which we have dealt with elsewhere2.

In so far as the Board is to consist of persons other than sitting Judges, it may, in the first place, be embarrassing for the Board to reconsider and review matters already considered by the High Court or the Supreme Court. Secondly, often it may not be considered advisable, in the public interest or for reasons of State, to communicate to many persons the facts of the case and the reasons for the proposed exercise of the prerogative.

In such a case, if the matter is referred to such an advisory Board, and a particular advice is given by the Board, it will be embarrassing both for the Board and for the President or the Governor, if a different decision is ultimately taken. What is essentially a prerogative should not be converted into a matter on which a controversy would arise. Not much difficulty has been caused by the absence of any such provision. We do not therefore think that any new provisions are necessary.

1. For a summary of replies received to question 11(b), see paras. 1026-1069, supra.

2. See paras. 1081-1085, supra.

1087. It may be noted that the Royal Commission also considered a similar suggestion, and rejected it1. The Royal Commission observed, "The Home Secretary is now free to consult the trial Judge and anyone else he thinks fit. But the exercise of the Royal Prerogative is an administrative, not a judicial act".

1. R.C. Report, pp. 209 and 210, paras. 600-601.

1088. In some of the African countries, Advisory Boards have been created. We quote from a recent book1:-

"Only in Malaysia and Jamaica is the advice tendered by a body with an unofficial and potentially non-political majority, in Malaysia a Pardons Board2, and in Jamaica the Privy Council3. In Sierra Leone the Prime Minister assumes responsibility; he is obliged to consult an advisory committee of Cabinet Ministers in capital cases and is empowered to consult them in other cases, but he is not obliged to follow their advice4.

A similar pattern is followed in other constitutions, except in so far as the "responsibility is usually confided in a Minister other than the Prime Minister and the advisory Committee will include the Attorney-General and will exclude other Ministers and politicians. In Nigeria and Uganda the unofficial members of the advisory committee hold office for a fixed term and are removable only for inability or misbehaviour; in Nigeria one of the members must be a medical practitioner5. Tanganyika has retained an advisory committee on what the republican Constitution still calls the "prerogative" of mercy"6.

The composition of the Advisory Board or similar bodies in some of the countries is dealt with in another recent publication7.

1. S.A. de Smith The New Commonwealth and its Constitutions, (1964), p. 146.

2. Article 42. The members are the Federal Attorney-General, the Chief Minister of the State concerned and three other persons who are not to be members of a legislature; the State Ruler presides.

3. Sections 90-91. The Governor-General must act on the Privy Council's recommendation in all cases. The Council consists of six members, appointed and removable by the Governor-General after consultation with, but not necessarily on, the advice of the Prime Minister; at least two of them must be present or past holders of public offices (sections 82 to 89). It would be more accurate, therefore, to say that the Privy Council has potentially an unofficial majority.

4. Sections 70 to 72.

5. Nigeria Federal Constitution, sections 94 to 96; Uganda, sections 84 to 86.

6. Article 19, Presidential Affairs Act, 1962 (C.A. Act, No. 4). In Ghana (see Article 48) the President may seek advice from the Supreme Court (Courts Act, 1960 C.A., section. 24).

7. Kenneth Roberts-Wray Commonwealth and Colonial Law, (1966), pp. 345, et seq.

1089. The provision in the Ceylon Constitution1-2 is also of interest.

"We do hereby direct and enjoin that the Governor-General in the exercise of the powers conferred upon him by Article 10 of the Letters Patent shall not grant a pardon, respite or remission to any offender without first receiving, in every case, the advice of one of his Ministers. Where any offender shall have been condemned to suffer death by the sentence of any court, the Governor-General shall cause a report to be made to him by the Judge who tried the case; and he shall forward such report to the Attorney-General with instructions that after the Attorney-General has advised thereon, the report shall be sent, together with the Attorney-General's advice, to the Minister whose function it is to advise the Governor-General on the exercise of the said powers.".

1. Para. 3, Royal Instructions, 1947; Jennings The Constitution of Ceylon, (1953), p. 251.

2. See also sections 328 and 329, Ceylon Criminal Procedure Code.

1090. Publication of reasons.-

We have carefully examined the question whether the reasons for granting commutation of sentence in capital cases should be required to be published. We appreciate the argument that when a sentence of death is commuted to a lesser one, as a result of the exercise of this prerogative, it may be regarded by many as an interference with or reversal of the decision of the highest court in the country or in the State, and that such interference or reversal must be based on strong reasons.

The suggestion for publication of reasons, which is sometimes made, may be an expression of this feeling. We are, however, afraid that the adoption of such a practice may do more harm than good. It would start a controversy in each case whether the decision granting or rejecting the petition for commutation was justified, and whether the President or the Governor should or should not have agreed with the final verdict of the court in the particular case.

Moreover, adopting the exposition of the subject made by Sir John Anderson in his evidence before the Royal Commission,1 we may point out, first, that it would be extremely difficult to give, in what would necessarily have to be a comparatively short statement, "an adequate impression of the cumulative effect of the considerations which the Home Secretary has to take into account"; and secondly, that there are, not infrequently, cases where the reasons which rightly weigh with the Home Secretary, involve grave reflections, amounting to accusations of criminal "conduct, against third parties", where an adequate, well-balanced and truthful statement of reasons could not be made without bringing into the light of the day the conduct of people not directly concerned.

We apprehend that there must be many other situations wherein an explanation of the reasons, if given in the public, might lead to controversies which may be prolonged and wasteful, and may injure not only the persons involved but also bring the highest dignitary into an arena where he should not be brought.

1. See R.C. Report, p. 211, para. 603.

1091. Recommendation of the court where to be a pre-requisite.-

We have also considered the suggestion that commutation should not be .granted unless it is recommended by the court. So far as commutation from the sentence of death to one of imprisonment for life is concerned, we believe that cases of such recommendation by the court would be infrequent, as courts themselves have the power to substitute the lesser sentence in view of the discretion enjoyed by them in the matter.

So far as commutation of a sentence of life imprisonment to one of imprisonment for a specified period is concerned, a recommendation of the court would certainly be of the greatest value, and, where such a recommendation is made1, it will always be taken into account. We do not, however, think that the making of such a recommendation should be made a condition precedent to the exercise of the power of commutation. Facts not known at the time of trial, or events which took place subsequently, would be ruled out from the consideration of those concerned, if such a condition precedent is laid down.

1. See Analysis of the Case Law, Cases No. 4 (Foot-notes), 33, 34, 36, 46, 47, 52, 53, 57 and 93.

1092. Consultation with the Attorney-General.-

One of the replies received on the subject1 makes the suggestion, that the Attorney-General should be consulted in these matters. The power to consult him is already there under the Constitution2, whereunder it is "the duty of the Attorney-General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President". It is unnecessary to go beyond that.

1. See para. 1066, supra.

2. Article 76(2) of the Constitution.

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